OGH on Statutory Deferrals in Public Liability Suits

Mar 17, 2023 Benn-Ibler Rechtsanwälte

The three-month period of Section 8 (1) of the Austrian Public Liability Act (Amtshaftungsgesetz, hereinafter AHG) has no impact on the due date of a claim for damages brought to a legal entity against which an action has been filed. The view that this is a true deferment is to be rejected.

The plaintiff sold a used automobile. In the related preliminary proceedings, the buyer claimed rescission because the car had not been safe to operate owing to major defects. In addition to remedies under warranty law, the buyer also relied on a reduction by more than half (laesio enormis) according to Section 934 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB). The Klagenfurt Regional Court of Appeal affirmed the claim, although the buyer no longer claimed laesio enormis.

The plaintiff was now seeking damages, including 4% interest, from the defendant Austrian Federal Government (State Financial Procurator's Office) in the course of official liability, because he had unlawfully suffered damage as a result of the Regional Court’s ruling. The defendant replied that a claim under Section 934 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) could very well be discerned from the writ of appeal and further argued with regard to the interest claim that the due date under Section 8 AHG was only three months after a letter of demand had been sent.

The lower courts upheld the claim (in varying sums). In particular, they awarded the plaintiff interest. The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) held as follows:

On principle, the OHG affirmed the liability of the Federal Government because the Regional Court of Klagenfurt had unjustifiably exceeded its power of review in the proceedings on the merits. However, a claim arising from official liability only becomes due with a notice of default, a lawsuit, or an extension of the lawsuit. Interest only accrues from this point in time. The OGH replied to the defendant's point of view that Section 8 (1) AHG, with its three-month deadline, was intended to give the legal entity against which a claim is made the opportunity to examine the claim for compensation by means of deferral by providing that such an examination is incumbent on every debtor. The OGH also ruled that an official liability action filed before the expiry of the three-month deadline is subject to the same legal consequences as an insufficiently substantiated demand, so that the only consequence is that a plaintiff, who is successful in the action, is still obliged to pay the costs. If one were to assume a true deferral, an action for performance brought before the expiry of the three months would, comparatively, also have to be dismissed, provided that the conclusion of the oral hearing takes place before the due date.

OGH 1 Ob 131/22d (14.09.2022)